Removal of Children in Illinois in Light of Collingbourne and Eckert: The Pendulum has Swung Back to the Middle
Original Article: Illinois Bar
Journal, Vol. 84, No. 2, February 1996.
*Co-Author to Original Article Carl W. Gilmore
Updated following the Illinois' Supreme Court's Collingbourne decision and Later Case Law
By: Gunnar J. Gitlin
The Gitlin Law Firm, P.C., Woodstock, Illinois
© 2013, April 24, 2013
The Illinois Supreme Court used its 1988 Marriage of Eckert opinion to establish factors for courts to consider in deciding whether to allow custodial parents to move children out of Illinois. As Eckert aged, appellate court decisions significantly diverged in applying the Eckert factors with three appellate court districts appearing to consider the custodial parent's "economic necessity" in removal decisions. With the 1996 Smith decision, it appeared that there no longer would be as wide a gap among how a case may be decided depending upon the district where a case is brought. However, the Second District's IRMO Collingbourne had reflected a continuing difference among the districts as to the treatment of removal cases. For this reason, I had anticipated that the Illinois Supreme Court would reverse the appellate court's decision in Collingbourne and reaffirm that the court may consider indirect benefits of the child due to a proposed removal. Following the Illinois Supreme Court's Collingbourne decision, no longer should there be a significant difference in treatment of removal cases based upon the district where the case is filed. The decision will finally result in the pendulum being swung back toward the middle in terms of how removal cases are treated in Illinois. But as is seen by the cases following Collingbourne, removal proceedings remain highly unpredictable.
The IRMO Matchen (McHenry County to Wisconsin Dells), Newton v. Sale, IRMO Stahl v. DeLeo (Cederburg, Wisconsin) and Johnson cases, however, indicate that Collingbourne was not a revolutionary case in Illinois but that it still remains difficult to obtain removal in Illinois (as compared to most other states). However, the contrast between the decisions in one district -- the Second District -- indicate that the goal of uniformity remains elusive with court taking lenient stance in allowing removal in IRMO Repond and in Main while taking a restrictive stance in IRMO Johnson, IRMO Stahl v. DeLeo and in IRMO Matchen. In fact, two of these decisions seem to indicate that in the Second District the result may depend upon the panel of judges that hears a given case -- with the differing panels emphasizing different aspects of the Collingbourne decision.
The last month of 2009 brought one of the more lenient cases in terms of allowing removal -- in a decision probably influenced by the fact that travel was essentially free where the father was an executive with United Airlines and where there would be indirect benefits (financial) due to the removal and the proposed removal. IRMO Meeta Bhati and Ajay Singh, (First Dist., December 15, 2009). But this contrasts with the 2012 1st District decision in IRMO Demaret, 2012 IL App (1st) 111916 (January 2012). There the appellate court upheld the trial court's denial of removal to an executive mother with a significant pay increase due to her move – and this time only to New Jersey.
The first month of 2012 also brought another interesting contrast from the same district: a lenient and a restrictive Third District decision. This lenient Third District affirmed the trial court's decision granting leave to remove to the mother who obtained a job as a foreign service officer. IRMO Coulter, 2012 IL App (3d) 100973 (January 2012). And the restrictive decision was one where the appellate court reversed the trial court - in Shinall. Keeping with the thesis it is difficult to reconcile while the same appellate court chose not to reverse the decision in Coulter yet did choose to reverse the decision in Shinall. And the more recent lenient decision from the Third District was July 2012 in IRMO Kincaid, 2012 IL App (3d) 110511, where the appellate court affirmed the trial court's granting of removal to Texas where there was a support network of extended family, positives regarding career advancement as well as other factors favoring removal.
We also recently received the D. Wade removal decision, granting leave to remove. But again, that was a decision which was likely influenced by unique factors: a mother with significant negative evidence involving alienation. In Re D.T.W., 2011 IL App (1st) 111225 (2011).
For a more comprehensive update
of this article, see the pdf of the article available at www.gitlinlawfirm.com.
I n the seminal removal case of Marriage of Eckert, the Illinois Supreme Court laid out five factors for determining whether a custodial parent should be allowed to remove a child from Illinois. With the Eckert holding, the supreme court consolidated divergent trends in the appeals courts, providing a unified removal rule. In February 1996, I co-authored an article titled, "Post-Eckert Trends in Child Removal: A review of Appellate Cases." Shortly after this article was published, the Supreme Court (in April 1996) decided the IRMO Smith case, in which the Court again tried to bring what had been divergent rulings back to the principles originally set forth in the Eckert decision. Because of the continuing difference among the districts, in 2002 the Illinois Supreme Court accepted certiorari of a Second District case which was at odds with the case law in the other districts – IRMO Collingbourne.
I can recall a candidate for the Wisconsin Supreme Court being interviewed as to what she terms a “conservative judicial activism” approach. By this, she stated that the goal of the state’s highest court should be to remedy the situation that occurs when there is a difference as to how a case is handled depending upon the location the case is brought. The Supreme Court candidate suggested that by accepting such cases for appellate review in divorce cases, the high Court can best serve the public’s interest. It is suggested that the Illinois Supreme Court in Collingbourne, did exactly what was suggested by this Justice when it decided the IRMO Collingbourne decision. No longer should there be a significant difference of treatment based upon the judicial district where the proceeding is commenced.
Prior to the Supreme Court's Collingbourne and Smith decisions, two cases -- IRMO Gibbs, a first appeals district case, and IRMO Eaton, a fourth district case -- illustrated that the determination of whether removal would be allowed depended upon the appellate district reviewing the case. In my original article I urged that among the appellate districts, the outcome often depended upon whether the custodial parent could demonstrate "economic necessity": in most districts the custodial parent had to demonstrate that the move for pressing economic reasons. While prior to the Smith decision, the appellate courts appeared headed in different directions with respect to removal, I had suggested that the single judicial district that was out of line with the rest of the state was the District where I practice in, the Second Judicial District (which had included counties such as DuPage County, Kane County, Lake County and McHenry County, Illinois). It is not coincidental that the Illinois Supreme Court ruled chose to accept for review a Second District case in which the appellate court rejected what is referred to below as a consideration of any “indirect benefits” stemming from the proposed removal.
The author has analyzed the cases since IRMO Eckert using a spreadsheet format. The full spreadsheet is shown in Exhibit 1. Prior to the Supreme Court's Smith decision it appeared that the trend was somewhat towards allowing removal. The reason for the original Eckert decision was that the appellate decisions had become too permissive in allowing removal. It appears that the reason the appellate court accepted certiorari with respect to the Smith decision was to gently suggest that the pendulum had once again swung slightly toward the side of allowing removal too liberally.
The thesis of our original article was, "the first, fourth and fifth appellate districts allow removal upon showing of economic necessity, although this test has never been expressly articulated. The third appellate district almost always allows removal, and the second appellate district almost always denies removal." I had predicted after the Smith decision that the the pendulum had swung slightly back to the middle -- with the appellate decisions being more unified than at any time in the recent past on this issue. But, as discussed below contrasts with decisions such as the recent Singh decsion as against many much more narrow appellate decisions reveal that removal in Illinios remains extremely unpredictable with certain appellate court panels being pro removal and others being far more restrictive.
"Economic necessity" is not sharply defined. A parent may show economic necessity by showing he or she faces serious economic problems in Illinois, and that these economic troubles will be resolved in another state. Usually, the serious economic problems are long-term unemployment or underemployment despite concerted efforts to find work. Presumably, economic necessity works to allow removal because it offers direct benefits to a custodial parent. These direct benefits transfer to the child, and are sometimes called "indirect benefits." Often, pressing economic conditions would force the custodial parent to make the choice between staying in Illinois with his or her child and having an improved life.
This article begins with a summary of IRMO Eckert and IRMO Smith. It ends with the Illinois Supreme Court case of IRMO Collingbourne decision. On only one other area of Illinois family law is there a treo of Supreme Court cases -- that is, addressing personal and professional goodwill. For that line of cases there is relatively clarity. As can be seen, however, there remains a lack of clarity by the Illinios appellate courts regarding their treatment of removal cases.
Over the years I have developed a spreadsheet of all significant Illinois removal cases following Eckert. The spreadsheet shows several themes. But these themes can be overstated easily because a number of the cases are somewhat ad hoc. The principles, though, that can be culled by the case law are:
☞ Economic Imperative Remains a Key Factor.
First Subrule: Historically, a better case was made where a spouse's job was transferred. But recent cases have more focused on cases where there was a significantly better job prospects for the custodian.
Second Subrule: Even with significantly better job prospects a generous parenting schedule or other factors may trump.
☞ Distance is Important But Often Can be Trumped by Other Factors.
First Subrule: If going a long distance, for the party seeking removal, propose a generous parenting schedule. For example, we had two cases involving a move to another country. Both involved substantial career advancements for the custodial parent. A key in each of those decisions was the father did not exercise all the parenting time he was awarded.
Second Subrule: A short distance does not necessary mean that obtaining removal is easy. It is not.
☞ The Impact on Parenting Time of the Non-Residential Parent is Critical.
First Subrule: The removing parent does better when she or he proposes a generous parenting schedule without a very substantial impact on parenting time.
Second Subrule: For the non-residential parent to contest removal, exercising his or her parenting time assiduously is critical.
☞ Extended Family: This is important but often not critical.
☞ Age of the Children: The age of the children can be important, especially if you are dealing with a very young child. This is because attachment theory, etc., addresses the importance of frequency of contact when dealing with young children.
☞ Reversals of Orders Granting Removal are Difficult: If you win at the trial court, it is easier to obtain a reversal if removal were not granted than if removal were granted. Put another way: consider appealing more strongly if there are good facts and a denial of removal.
☞ Overall Cases are Split, But...: Published decisions are fairly evenly divided between cases in which removal was ultimately granted and not granted, although post-Collingbourne, we are seeing a few more cases where removal is ultimately granted. This makes sense because Collingbourne was a somewhat pro-removal Illinois Supreme Court decision.
☞ Removal to One May Mean Removal to All: One more place where Illinois law is less than clear is whether removal from the State of Illinois, essentially allows removal to any state. The Fourth and Fifth Districts have weighed in on the subject and are split. See my 2013 case law discussion of the Banister decision and my spreadsheet regarding Illinois removal case law.
Consider how the cases below fit within these eight principles.
All removal cases involve application of the Illinois Marriage and Dissolution of Marriage Act §609. (#2) This section allows a court to grant leave to any party having custody of the parties' minor children to remove the children from Illinois. However, removal must be in the best interests of the children. The section also sets the burden of proof upon the party seeking removal. The statute, therefore, sets the focus of a removal inquiry on the children.
Prior to passage of the removal statute, courts tended toward allowing removal. In Gray v. Gray, the first appellate district found a trial court erred in denying removal. (#3) The first appellate district reasoned a court "should not oppose removal of the child unless there is a specific showing that the move would be against the child's best interests." The appellate court held that it is in a child's best interest to remain with the parent who has custody. (#4)
IRMO Eckert applied the new IMDMA removal statute to shift the burden of proof to the removing parent. (#5) The mother, the custodial parent, petitioned for removal of the children from Illinois to Arizona. The mother's son from a previous marriage was asthmatic, and the Arizona climate would be better for the nonmarital son's health. Evidence showed the standards of living would be approximately the same in Illinois and Arizona, with the exception of the improved climate in Arizona. The marital child was well-adjusted and both parents were deemed excellent. However, there was testimony the mother had attempted to interfere with the father's visitation rights and the father's participation in the child's school activities in the past.
The trial court denied the removal petition, finding that maintaining the father's relationship with his son was in the best interest of the son. The trial court also found the move to Arizona would be neutral regarding standard of living, but would harm the father's relationship with his child. The fifth district appellate court reversed, holding removal should be allowed unless there were circumstances militating against the move. (#6)
The state supreme court reversed the appellate court and affirmed the trial court. First, the supreme court pointed to the plain language of §609, which placed the burden on the parent seeking removal. Next, the high court borrowed heavily from the New Jersey case of D'Onofrio v. D'Onofrio, (#7) and set forth five factors to consider. These factors include:
1. whether the move enhances the general quality
of life for the custodial parent and the children;
2. what the motives of the custodial parent in seeking removal are, i.e. whether removal is simply a ruse to defeat or frustrate visitation;
3. the motives of the noncustodial parent in resisting removal;
4. that it is in the best interest of the child to have a healthy and close relationship with both parents as well as other family members; and
5. whether a realistic and reasonable visitation schedule can be reached if the move is allowed. (#8)
Focusing on the distance from Illinois to Arizona, the supreme court determined the policy behind the IMDMA -- including securing the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children -- would not be served by requiring the noncustodial parent to bear the burden of proof to prevent removal.
II. SMITH and ELLIOTT
In IRMO Smith, (#9) the Illinois Supreme Court ruled that the trial court properly denied removal, despite indirect benefits of the removal for the children, when evidence showed that one of the children would suffer severe emotional problems if the removal were allowed. As is discussed below, the consideration of indirect benefits usually is under the guise of actually considering the economic necessity of a proposed move.
The Third District Court of Appeals affirmed the trial court's judgment denying the mother's post-divorce removal petition in an unpublished opinion and in Smith the Illinois Supreme Court affirmed.
The parties in Smith were divorced in 1989 and the trial court entered a joint parenting order for the parties' two children. The shared custody arrangement allowed the mother to have the children for five consecutive days on the first and third weeks of the month, with the father having the children on the other two days. In the alternating weeks, the father had the children for 4 ½ days, with the mother having the children for the other 2 ½ days. The mother, in 1992, petitioned the court for removal of the children to New Jersey and for a modification of the custody from joint to sole custody. The father counter-petitioned for modification of joint custody, to sole custody for him. Both parties and the children lived in Peoria.
The mother remarried in 1992. Her new husband lives in New Jersey, where he is a senior vice president of a company. He earns about $200,000 annually. The mother told the new husband that if she did not gain custody of the children, she would not move to New Jersey, and the new husband said that he never intended for the mother to leave her children. The new husband further testified that when he married the mother, the mother's intention was to remain in Illinois with her children pursuant to the joint custody arrangement. The mother had quit work to spend more time with the children and her new husband.
The father had also remarried. He earned about $100,000 annually. Prior to the divorce, the father had provided significant child care to the children. Both parents said they participated in a variety of church, social, athletic and cultural events with the children.
The Supreme Court looked to its opinion in Eckert. The high court stated denial of the removal petition was proper, since the trial judge found removal to New Jersey would be severely detrimental to the mental health of one of the children, based upon expert testimony. Experts for the mother and father showed that the troubled child was suffering severely as a result of the friction between parents:
We need not detail the extent of [the child's] emotional problems . . . The trial judge was correct to place great weight on the harm that a move to New Jersey would cause to [the child's] mental health in this case. Where, as here, the evidence shows that a child will be severely damaged by removal as a result of the child's emotional problems, this is a factor which weighs heavily against allowing the removal.
The Supreme Court in Smith rejected the mother's argument that the trial judge had not considered indirect benefits to the children:
[T]he judge found that, despite the indirect enhancement factor, [the mother] had failed to show that an overall enhancement of the children's lives would result from the move. . . . The evidence further showed that the girls were very involved in school and community activities in Peoria. Although comparable schools and essentially the same activities were available to the girls in New Jersey, a move to New Jersey would require them to leave their familiar surroundings and establish new relationships with friends and community members. This would burden the children with stress and pressure, which is exactly what the court-appointed expert advised against. . .
It appears that the Smith court deliberately accepted certiorari in a case where it could approve of the consideration of indirect benefits in a case where the mother seeking removal would be economically advantaged by the removal but where the evidence showed that the removal would not otherwise be within the best interest of the children.
As is addressed below, subsequent to Eckert, the most significant factor under Eckert with which the appellate districts have dealt is the first factor, the enhancement of the quality of the life of both the custodial parent and the children.
Since Eckert there have been at least 14 appellate court cases on the issue of indirect benefits. The facts of Smith are somewhat typical of the cases which deal with indirect benefits. In the typical case the stepfather is going to be transferred out of Illinois -- a good career move for him. The reasoning is that if it is a good career move for him, it serves the mother's best interest and what is good for the mother is good for the child.
Considering the number of appellate court removal cases which have been decided based largely on the issue of indirect benefits, and considering the fact that all of the appellate districts, except for the second, allow removal on the basis of indirect benefits, the high court accepting review of a removal case that involved indirect benefits was to be anticipated.
What is curious about Justice Bilandic's opinion is that he makes no reference to the appellate court opinions which have considered the issue of indirect benefits but the opinion notes that the trial court properly considered the indirect benefits and then rejected this as a persuasive reason for removal. Undoubtedly Justice Bilandic was aware of the dozen indirect benefit removal cases, but deliberately chose not to refer to these cases believing that the Supreme Court had already set forth the appropriate standards in Eckert and that there was no compelling reason to restate those standards.
Regarding indirect benefits, the opinion states:
Here, the trial judge wrote in his opinion that, although [the mother's] life may be enhanced by moving to New Jersey, where she could join her new husband, there had been no showing that the children's lives would be enhanced. [The mother] asserts that the trial judge failed to consider the indirect benefits which would result to the children from the enhancement of her quality of life. See Marriage of Pfeiffer, 237 Ill.App.3d 510, 514 (1972) (noting that a mother's establishment of a new and successful marriage relationship would enhance the mother's quality of life and in that way would indirectly enhance the child's quality of life). We are not persuaded that the trial judge failed to consider the indirect benefits which would result to the children from the enhancement of [the mother's] life should the removal be allowed. Rather, the judge found that, despite the indirect enhancement factor, [the mother] failed to show that an overall enhancement of the children's lives would result from the move.
Thus, Smith stands for the proposition that consideration of indirect benefits is proper and that the trial court should consider indirect benefits to the children from the proposed removal. However, while the trial court may consider the indirect enhancement to the children's life by the improvement in economic lifestyle, the mother failed to show that there would be an overall enhancement of the children's lives as a result of the move based upon all the evidence in this case.
It can be argued that the Smith opinion was affirming the trial judge on an evidentiary basis. Commenting on the evidence the high court said that the trial judge conducted a thorough hearing and that, "We cannot say that the trial judge's decision is against the manifest weight of the evidence." First the opinion sides with the trial judge, on the basis of psychiatric evidence, that a move to New Jersey would cause harm to the mental health of one of the children. As to the indirect benefits to the child, Justice Bilandic's opinion stated that the trial court's "finding was appropriate under the facts of this case."
While I would have liked to have seen the high court take a clearly defined stand on the issue of indirect benefits, it seems that the Bilandic opinion chose to stay above the fray and merely rule on Smith as if there had been no removal cases after Eckert until the current Smith case.
Elliott v. Elliott (#10) followed Smith and as will be discussed below represents a significant break from the previous manner in which the Third District addressed the issue of indirect benefits. The Elliott court held that improvements in the custodial mother's lifestyle were important only to the extent that the improvements benefited the children, and, where the father assiduously exercised visitation rights, the trial court properly denied the mother's removal petition.
On appeal from post-judgment removal proceedings, the mother argued that the trial court placed undue emphasis on the difficulty in establishing suitable visitation and the trial court did not place enough weight on the benefits that the mother would enjoy if removal were allowed. The third district court of appeals affirmed the trial court's denial of the mother's post-judgment removal petition.
The mother and father were divorced in 1991, and were granted joint custody of the two girls, a 10-year-old and an eight-year-old, with the mother being the primary custodial parent. In December 1994, the mother sought removal of the children to Ohio from the Quad Cities. All of the parties' relatives, with the exception of the mother's sister, lived in the Quad Cities. Both children had lived in the Quad Cities their entire lives.
At a hearing in February 1995, the mother testified that she had graduated chiropractic school after the divorce and took the Iowa chiropractic exam, but had failed the bookkeeping portion. She testified that Illinois did not require the test, but she could not afford the chiropractic fee in Illinois. The mother was licensed to practice as a chiropractor in Ohio and had a job offer in Ohio. In Illinois, she worked at her father's chiropractic office for $8 per hour. The mother and the children lived in a house owned by the mother's parents in Illinois, and they paid neither rent nor child care expenses. The mother was also engaged, and her fiancé had a chiropractic practice in Ohio.
The father testified that he was a dock worker who was on call and therefore had an irregular work schedule. In addition to the court-ordered visitation, the father exercised extra visitation when his work schedule allowed. He was very close to both girls, was the older child's basketball and softball coach, followed both girls' progress in school and met with their teachers. There was additional testimony that the father's relatives frequently saw the girls, and all the grandparents had close relationships with the girls. During an in camera interview, the older girl testified that she told her mother she did not want to go to Ohio, and the mother responded "too bad." The older girl further stated that she did not like the mother's fiancé or his parents, that the fiancé did not allow the girls to use their father's name and he made fun of the father, and that the fiancé used profanity in her presence.
The trial court denied the February 1995 removal petition, applying the factors of Eckert. In its ruling, the trial court determined: 1. the mother did not meet her burden in showing that removal to Ohio was in the best interests of the children; 2. the mother's income and expenses would increase with removal to Ohio; 3. the mother could retake the Iowa chiropractic exam and work with her father; 4. all of the children's relatives, including their father and grandparents, lived in Illinois; 5. the children's quality of life would not be enhanced by their move to Ohio; and 6. due to the distance to Ohio and the father's irregular work schedule, no reasonable visitation schedule could be crafted that would preserve the father's relationship with his children.
In July 1995, the mother filed a second removal petition, for which a hearing was held in August 1995. The transcript of the first hearing was used as evidence, and additional evidence showed that the mother found a new job in Ohio offering $850 per week plus bonuses. The mother testified that she would drive the children to Illinois every other weekend for visitation. The trial court again rejected the removal, ruling that the visitation schedule was unworkable because the children would become involved in weekend activities. Furthermore, the father's erratic work schedule was such that he often had one hour's notice before he had to begin work, which made a set visitation schedule impractical. The trial court found the move to Ohio would benefit the mother and, indirectly, the children. However, the removal of the children to Ohio would split the children from their father, grandparents and the environment in which the girls had grown up. The trial court determined that the potential harm to the children outweighed any benefit. Although the trial court found the motives of both parents to be sincere, it also found that the mother had not proven that removal was in the best interests of the children.
As to the issue of indirect benefits, the third district appeals court stated, [a]ny improvement of the custodial parent's lifestyle is important only to the extent the improvement benefits the children." The facts that the children were well-adjusted and doing well in school, had strong family ties to the Quad Cities and were involved in extracurricular activities, and that the older child said she did not want to move to Ohio were important factors against the removal. Additionally, the older child said the family environment in Ohio was less desirable than the family environment in the Quad Cities. The court stated:
. . . our courts have always recognized that it is in the best interest of the children to maintain a healthy and close relationship with both parents, as well as other family members [citations omitted]. For this reason, we must carefully consider the visitation rights of the noncustodial parents [citations omitted]. Towards this end, it is also vital that trial courts be guided by the stated purpose of the [IMDMA] to "secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children during and after litigation." [Emphasis in opinion].
The appellate court held that the trial court gave proper consideration to the father's visitation rights. When a parent has assiduously exercised his or her visitation rights, the ability of the trial court to fashion a reasonable visitation schedule is especially important. The appellate court agreed with the trial court that the distance from Illinois to Ohio and the father's erratic work schedule made fashioning a reasonable visitation schedule impossible:
It is undisputed that [the father] has steadfastly exercised his visitation rights. He has been a constant and important figure in his daughters' lives, and he wants to continue to be a full-time father to his daughters. The record supports the trial court's findings.
The third district's holding in Elliott represented a break with that district's precedents. In Gitlin on Divorce: A Guide to Illinois Matrimonial Law, it was noted that the Eckert opinion appears to have had little influence on the third district, because the third district considered indirect benefits, or benefits derived by the child as a result of benefits to a removing parent. In our original article, Post-Eckert Trends in Child Removal: A Review of Appellate Cases, 84 I.B.J. 76, by Gunnar J. Gitlin and Carl W. Gilmore, it was argued that the third district nearly always allowed removals. In fact, four times the third district appellate court allowed removal by overturning a trial court removal denial. The sole case in which a removal was denied involved a mother who filed a removal petition only 15 days after the divorce judgment entered.
Elliott suggested that the
third district may have retreated from allowing virtually all removals, and
that the district court may have moved toward a centrist position. Of particular
importance is the appeals court's statement: "Any improvement of the custodial
parent's lifestyle is important only to the extent the improvement benefits
the children." The third district's historical focus on indirect benefits appears
to have been tempered, with parental wants and needs taking a back seat to the
wants and needs of the children. I wrote that the third district's historical
focus on indirect benefits clearly had been tempered, with parental wants and
needs taking a back seat to the wants and needs of the children – as shown by
the reversal of a trial court's granting of removal in the 2012 decision (Shinall)
and the affirmance of a denial of removal in a 2006 decision (Hansel)
– both discussed further below.
- THE ECONOMIC NECESSITY
Three appellate districts which before Collingbourne and Smith routinely allowed removal upon showing of economic necessity were the first, fourth and fifth appellate districts.
A. IRMO Gibbs and the First Appellate District
Gibbs: In IRMO Gibbs, the custodial mother sought to remove a 6-year-old child to Florida because she had remarried. The mother testified she would not have to work if the move was allowed, while in Illinois she would have to work as a sales clerk. The new husband was an airline pilot and would take a $5,000 pay cut if he was transferred from Florida to Illinois. His income in Florida was $96,000.
The trial court denied removal, and the First District Court of Appeals affirmed. Critical to the appellate court decision was the lack of necessity regarding the move. The new husband could have transferred to Illinois, but did not attempt to do so. (#11) The appellate court held the $5,000 pay cut was not significant enough to prevent remaining in Illinois, which meant the mother's request to move may have been intended to frustrate visitation. The new husband testified he did not know if he would stay with the mother if the removal was denied, indicating a lack of commitment to the relationship. Moreover, the mother removed the child from Illinois without leave of court, hinting of an attempt to frustrate visitation. On the other hand, the father's motives in opposing visitation were based on his desire to maintain a relationship with his child and his fear that the new husband might abuse the child. (#12) The father also exercised his visitation rights, and the move to Florida had frustrated his visitation efforts. (#13) As the new husband could have moved to Illinois but did not explore the options, there was no necessity. Removal was properly denied.
Zamarripa-Gusendheit: One of the earlier indirect benefits case based upon the new husband's job transfer is Marriage of Zamarripa-Gesundheit, in which the trial court denied a mother's petition to remove an 11-year-old girl to Seattle, Washington. The mother's new husband, a postal worker, was transferred and would lose significant benefits if he did not transfer. The mother testified she would allow the father visitation for the majority of the summer months, and she talked about placing child support payments in an escrow fund to pay for transportation. The child testified she did not want to leave Chicago.
The appellate court overturned the trial court decision and allowed removal. (#14) The appeals court looked at indirect benefits to the child. (#15) The appellate district court went further, however, holding because the move would enhance the new husband's quality of life, and the mother wanted to be with her new husband, the child's quality of life would be improved. (#16) Although it respected the father's interests, the appellate district court held liberal visitation rights afforded the father would allow him to maintain a close relationship with his child. Therefore, the removal should have been allowed, the appeals court said.
Often, as in Zamarripa, the custodial parent's new spouse has found a new job. In IRMO Roppo, the custodial mother's new husband found a new job in Wisconsin, and the trial court determined that removal would not be in the three-year-old child's best interest. Again, the first appellate district overturned the trial court, this time saying the trial court must balance all of the competing interests involved. (#17) Finding the mother's reason for leaving to be neither frivolous, unpersuasive nor inadequate, the first appellate district again pointed to indirect benefits in allowing the removal. Similarly, in IRMO Miroballi, the first appellate district reversed a trial court denial of removal to Michigan. This time, the appeals court said the mother would be happier in Michigan. (#18) The mother's new husband owned and operated a sales business in Michigan. He testified he could not maintain the business while living in Illinois. Coupled with the fact the mother would not have to work in Michigan, the mother's enhanced "happiness, her well-being, and her general disposition" were sufficient reasons to allow the move.
Zamarripa, Roppo and Miroballi are good illustrations of economic necessity. In all three cases, a new spouse was employed outside the state. There was evidence the custodial parent would have to make a choice between the new spouse and the child if the removal was denied. Moreover, there was evidence that there was no realistic option, other than removal, for the custodial parent. Thus, the move was a necessity for the custodial parent. Gibbs is a converse situation: the mother faced no necessity, because the new spouse could have found employment in Illinois.
In the two cases besides Gibbs where the trial court's denial of removal was affirmed, the custodial mothers' spouses did not have new jobs, so no necessity was shown. In IRMO Stone, the mother wanted to move because her fiancé had found a job with the Denver Police. The mother testified she never planned on staying in Chicago permanently and wanted to return to Denver. The father, an airline pilot, testified that visitation in Denver would be extremely difficult, and he would have added costs. The appellate court said the mother's educational goals could be met in Chicago, and was skeptical as to other plans the mother testified about. (#19) Therefore, the petition was properly denied. Additionally, in IRMO Coss, the mother sought removal to her home state, South Carolina, where she could attend school for free and live rent-free. (#20) The appeals court affirmed the trial court findings that the quality of life would not substantially improve, the father's visitation and ties to the father's family would be greatly reduced, and the child was the most important person in the father's life. (#21) Therefore, denial of removal was upheld.
In the first district, economic necessity appears to enhance the likelihood of a successful removal petition. A custodial parent showing no choice but removal will find removal is allowed, even if the removal is to a distant location. However, if the custodial parent can be shown to have options other than removal, removal is usually denied.
2009 Bhati and Singh Case: The First District remains lenient in terms of allowing removal where there is a significant economic advantage to the removal as can be seen by the December 2009 decision in IRMO Bhati and Singh. The mother appeared from the order denying her petition for leave to remove the child to North Carolina. The parties, who were both of Indian descent, were married in 1995 in India. The father, Ajay, was living in the Chicago area at the time of the marriage and the mother, Meeta, moved from India to Chicago after the wedding. They purchased a two bedroom townhome in Schaumburg, in which they resided, and Sonia was born in October 2001. Ajay was and is an executive with United Airlines. At the time of the removal hearing, he earned $400,000 a year. The divorce judgment was entered in 2005. The ex-wife was worked for RSM McGladrey and earned a yearly salary of approximately $60,000. She had primary residential custody. The Father's parenting time was alternating weekends from Thursday to Monday and one night overnight each week. The father had three weeks parenting time during the summer. The daughter had just completed first grade.
Regarding other pertinent facts, the appellate court noted:
There was, however, negative evidence about the ex-wife. This included the following recap by the appellate court:Meeta testified that since her divorce, she has felt like a "pariah" or social outcast in the community. She noted that a single mother in Indian culture is ostracized and not given much respect. As a single mother, Meeta receives few social invitations and primarily socializes with other single mothers. Meeta is currently engaged to Dr. Viren Desai, who is also of Indian descent. They met through an Indian social networking website that brings people of Indian descent together for the purpose of marriage. She and Dr. Desai first began communicating with one another in April 2006 and met in person in May and became engaged that October. Dr. Desai is a physician who resides in Fayetteville, North Carolina. He is also divorced and shares custody of his two children who live nearby.
Meeta stated that if the court granted her petition for removal, she would not work and would be a stay-at-home mother to Sonia. Meeta and Sonia travel about once a month to visit Dr. Desai in North Carolina and Sonia has become very close to his daughter, Bianca, who is about two years older than her. Dr. Desai travels to Schaumburg to visit Meeta and Sonia about once a month as well. The plane ride from Chicago to Raleigh-Durham, North Carolina, is about 1 hour and 45 minutes long, and then the drive to Fayetteville is about 1 hour long. Meeta described Dr. Desai's home as a large, four bedroom, four bathroom home with a big backyard, swimming pool ... located in a gated community of single family homes. Sonia would attend Fayetteville Academy, a private school close to Dr. Desai's home, and where his two children also attend. The school includes grades from kindergarten to twelfth grade and offers many after school programs and sporting activities. Dr. Desai's office is also located close to his home. He is a member of the country club in Fayetteville, which has a golf course, tennis courts, swimming pool and dining facility. Dr. Desai has a large family, which gets together frequently to celebrate various holidays and birthdays. Meeta and Sonia have been welcomed into his family. Dr. Desai is also a member of various Indian organizations in Fayetteville and Raleigh-Durham that often host social gatherings.
Meeta testified that if she and Sonia were permitted to move to North Carolina, they would be able to spend more time together because Sonia would not need to be in daycare and Sonia would have more time for extracurricular activities and more of an opportunity to play with children from her school and the neighborhood. Meeta also stated that Sonia will be able to observe Meeta in her new role as a married woman, which Meeta thinks is important for Sonia. Meeta stated that Sonia and Bianca already consider each other stepsisters and love one another.
Meeta further stated that to minimize the disruption of moving, she would ensure that Sonia was available to visit with Ajay either in Chicago or in North Carolina as much as possible. Meeta has a cellular telephone and a web camera that Ajay and Sonia can use to communicate. Meeta stated that she would keep Ajay informed about Sonia's school and her extracurricular activities. She also proposed that Sonia could visit Ajay during her spring break, half her summer vacation and they could alternate holidays as they currently do. Meeta denied threatening Ajay in any way if he did not agree to the move to North Carolina.
He stated that around September 2006, Sonia told him about moving to North Carolina, which "completely shocked" him because Meeta had never said anything to him about it. As a result, he and Meeta agreed to meet at Starbuck's to discuss the situation. Ajay claimed that Meeta gave him 24 hours to decide if he would agree to removal and that if he did not agree, she would file a petition in court. Ajay further claimed that Meeta told him that she and Dr. Desai would make his life a "living hell" in that they would file lawsuits against him, they would send letters to his boss, and would make his life a difficult financial hardship if he did not agree. Ajay stated that anonymous letters were written to the CEO and CFO of United Airlines as well as the head of human resources concerning him and accusing him of things he never did.
The entire case should be reviewed in detail because removal cases are inevitably fact sensitive. A 604(b) was appointed to determine the impact of the proposed removal on the emotional, psychological and physical health of the daughter as well as the impact of the removal on the father daughter relationship. Regarding the 604(b) report, the appellate court noted:
[T]he report discussed the concept of "protective factors," which were described as "the residential parent's sincere commitment to the involvement of the other parent, evident in frequent sharing of information, business-like and effective communication about the child, flexibility about time and working with the other parents whenever appropriate." Dr. Star concluded that in this case, protective measures "do not seem evident." Specifically, her report stated "[w]hile [Meeta] has allowed [Ajay] his parenting time without difficulty, she does not inspire confidence due to her apparent attempts to coach the child, her quasi-negative remarks about [Ajay] to Sonia, her exclusionary policy regarding decisions about Sonia's school, activities and medical matters and her willingness to manipulate situations to her advantage in an attempt to make [Ajay] look bad." The report concluded that "[t]he overall effects point to a potentially negative outcome to Sonia's adjustment and development immediately and in the future and a high risk for damage to her relationship with [Ajay]."
In analyzing the removal factors the appellate court first noted that the general quality of life for the custodial parent and child factor favored removal. Regarding the motives of the mother in seeking removal, the appellate court stated first stated that her motives were genuine and sincere regarding economic improvements but also noted that, “Meeta's motives insincere in that she had "failed to embrace the spirit" of the joint parenting agreement and left the court with the impression that she would be pleased if she did not have to interact with Ajay as frequently as she was obligated to do. The court further found that in this respect, Meeta's motives were intended to frustrate Ajay's visitation.” There were no issues regarding the father's motives in resisting the removal in the eyes of the trial and appellate courts. The fourth factor is the effect on the non-custodial parent's visitation if removal were granted. Regarding this factor the appellate court simply noted the finding by the trial court that the father had been “diligent in exercising all the parenting time afforded him in the parties' joint parenting agreement and routinely seeks additional time with Sonia.” So the focus was on the fifth factor – whether a realistic and reasonable visitation schedule could be reached if removal is allowed. The appellate court stated that financially this was quite possible because travel would be at essentially no cost. The appellate court, however, stated that this factor, “became irrelevant when the court considered the lack of "protective factors" as described by Dr. Star.
The trial court had noted that the move would substantially impair the father's regular and ongoing parenting time and that the emotional toll on the daughter would be, “too high a price to allow removal.” The trial court also noted that the quality of time allowed would be substantially than the quality under the current visitation schedule.
Somewhat surprisingly, the appellate court commented favorably on the trial court's findings except as to the fourth factor: "We note that the court found that any proposed schedule would substantially impair Ajay's parenting time with Sonia; however, the consideration is whether a realistic and reasonable schedule can be reached. This factor weighs in favor of removal."
In an extremely generous pro removal stance the appellate court concluded:
Here, we are presented with a situation in which some of the Eckert factors weigh in favor of as well as against removal. As stated above, no one factor is controlling and a determination of the best interests of the child must be made on a case by case basis. In this case, we find [inconsistent with the trial court's findings] three of the factors in Meeta's favor, namely, that removal would enhance the quality of life for both Meeta and Sonia, Meeta's motives in seeking removal are genuine and a reasonable visitation schedule could be established. The remaining two factors in Ajay's favor, that his motives for resisting removal are genuine and that his visitation with Sonia would be diminished, do not outweigh the other factors. This determination should not be interpreted to mean that removal is in Sonia's best interests because there were three factors in Meeta's favor and only two factors in Ajay's favor. Rather, it is the nature of those factors in Meeta's favor that lead to the determination that removal is in Sonia's best interests. The fact that the move will enhance the quality of life for Meeta and Sonia, that Meeta is seeking to move to marry Dr. Desai and that a reasonable visitation schedule could be established, weigh heavily in our determination that in this case, removal would be in Sonia's best interests. We find the court's determination that removal was not in Sonia's best interests to be against the manifest weight of the evidence. A review of the record leads to the conclusion that in this case, the opposite conclusion is clearly evident.
We note that a child is neither a chattel that can be split between two owners nor an object in which any one person can hold a possessory interest. When drafting the removal statute the legislature provided that the best interests of the child were paramount. If removal results in an enhanced quality of life for Meeta and Sonia, then the fact that Ajay's visitation with Sonia would be diminished, should not overcome the other benefits to Sonia, which the court noted were numerous. We conclude that removal to North Carolina is in Sonia's best interests and the court's findings denying removal are against the manifest weight of the evidence. Meeta has met her burden of establishing that the petition for removal should be granted.
Justice Hoffman's dissent is better reasoned that the majority opinion in light of the deference that is supposed to be given to the trial court's decision. Justice Hoffman correctly urges:
The majority has correctly set forth the standard of review in this case; namely, the manifest weight of the evidence. However, instead of according the trial court's decision the deference it is due (Marriage of Collingbourne, 204 Ill. 2d 498, 522 (2003)), the majority appears to have usurped the fact finding function of the trial court and decided this case de novo. As I believe that the trial court's well-reasoned order is not against the manifest weight of the evidence and should be affirmed, I dissent.
The dissent pointed out the trial
court's finding that only one Eckert factor favored the removal, i.e.,
the indirect benefit – general quality of life factor.
B. IRMO Eaton and the Fourth Appellate District
IRMO Eaton (#22) and the recent , IRMO Ludwinski (#23) show the emergence of economic necessity as a critical factor in removal cases especially in the Fourth appellate district.
In IRMO Eaton, the custodial mother sought removal to Florida so she could marry an attorney who was practicing there. The new spouse lived in Florida for 11 years, and the mother testified she would be financially and socially secure in a Florida setting. The mother was financially pressed in Illinois. She had difficulties in arranging appropriate child care. On the other hand, the father had exercised visitation, and the parties cooperated. Occasionally, the parties agreed upon extra visitation. The trial court denied removal, based upon the father's reduced visitation if removal was allowed. The trial court also rejected consideration of indirect benefits to the children as a proper consideration, finding the benefits to the mother did not show a benefit to the children.
The appellate court reversed. Noting the mother had planned her move to allow visitation to the father, the appellate court said the motives of the custodial parent were not suspect. Additionally, it said the direct benefits to the mother, usually considered indirect benefits, were actually direct benefits to the children. (#24) Indirectly, the appeals court considered the necessity of the move to Florida when it looked to the testimony of the new spouse. The attorney testified that professionally and financially, it would not be practical to move his practice from Florida to Illinois. The opinion mentions this testimony, but does not address it directly. Thus, indirectly at least, it appears the fourth appellate district considered the necessity of the move.
In Ludwinski, the custodial father's proposed move out-of-state with sons was allowed where the father's employment and financial situation would be directly and indirectly enhanced, sons would be exposed to above average school system and proposed new visitation plan with mother was reasonable.
In Ludwinski, the ex-husband remarried. The ex-husband and new wife were of the Mormon faith. He was employed as an insurance agent on a commission basis. He received an offer for new employment from a Utah insurance business co-owned by his new wife's uncle. In July 1998, the ex-husband petitioned to remove the parties' two sons, who were then eleven-years old and nine-years old, to Utah.
At trial, the evidence showed that the schools where the sons would move to were above average, that the area was largely populated with people of the Mormon faith and that the area had plenty of recreational and cultural activities for the family to enjoy. The new wife's family lived in the town where they would be re-locating. The sons got along well with and fostered a close relationship with the new wife's family. The trial court found that the proposed move would not enhance the quality of the sons' life because even though the new wife had a big family in Utah they would be leaving their blood relatives in Illinois.
By taking the new job in Utah the ex-husband was expected to earn between $95,000 and $100,000 within five years. If he stayed with his present company his earning expectancy was $61,000 for that current year. The evidence showed that the market in Illinois had become unstable for insurance agents. The trial court denied the petition to remove the minor children because it did not find any guarantee of an increase in the ex-husband's income by taking the job in Utah, that it was only an opportunity, and the ex-husband did not attempt to seek better employment in Illinois.
The trial court considered the ex-husband's motivation for the move and reasons why the ex-wife was resisting. The trial court found that the ex-husband's move was primarily economic.
The trial court next considered the effect the move would have on the ex-wife's visitation and the relationship with her sons. With the proposed move, visitation would be reduced. The ex-husband proposed that the ex-wife would have visitation with the sons for six to eight weeks in the summer, Thanksgiving, spring break and Christmas break in alternative years. The ex-husband offered to pay for all airline tickets. The trial court found that the visitation change would not result in harm to the sons. However, the trial court found that the effect of financial pressures in re-locating would inevitably be felt by the sons. Taking these factors into consideration, the trial court held that removal from their known environment would not be in the best interest of the sons because of the stress involved and separation from the support of the mother. The ex-husband appealed.
The appellate court reversed the trial court primarily for the reason that the move would significantly affect the general quality of life for the ex-husband and his new wife. Contrary to the contention of the ex-wife and opinion of the trial court, the appellate court stated that neither the statute nor Eckert requires that the custodial parent seeking removal exhaust all employment opportunities in Illinois prior to seeking employment out of state. The Ludwinski appellate court commented that, "Not every prong of Eckert needs to be satisfied." Where the parent requesting removal is sincere and the motives are not frivolous or inadequate, the appellate court emphasized that all relevant factors should be considered in determining the best interests of the children. The fact that the ex-husband had presented a reasonable and realistic visitation plan to accommodate the ex-wife, including the payment of air transportation, seemed to be an influencing factor for the appellate court's opinion. The appellate court ruled in favor of removal even though testimony at the trial level revealed that the sons, who were seven and eleven years old, did not want to move to Utah.
IRMO Eaton and Ludwinski like Gibbs, helps fill out a line of cases dealing with necessity. The fourth appellate district cases of IRMO Lange, IRMO Davis and IRMO Clark represent cases in which no necessity was shown, so denial of removal was proper. Conversely, IRMO Deckard and IRMO Herkert represent cases where economic necessity provided incentive for allowing a move.
IRMO Lange (#25) involved a unique fact pattern but the case demonstrates the importance of showing a financial imperative for the move. The unique fact pattern in Lange was that the custodial parent filed a motion to remove the children from the current custodial residence, Terre Haute, Indiana (less than an hour's drive from the non-custodial residence), to a more remote residence in Texas. The case first ruled that the Illinois court has the authority to grant or deny such motion although in the absence of a petition the custodial parent may have had the right to remove the children without leave of court. Given the fact that the custodial parent had filed a petition for removal, however, the appellate court held that where there was no job transfer, etc. for the custodial parent, and where the job in the new state offers a comparable salary, it was not shown that the move would enhance the general quality of life for both the custodial parent and the children.
IRMO Davis hinged upon the fact that the custodial parent bears the burden of proving benefits to the child. (#26) The mother sought removal of one of three marital children to Georgia. The mother was to remarry. Her prospective husband rented a house with an option to purchase. The prospective husband had been employed in Decatur, Illinois, but had worked in Georgia for about 90 days. The appeals court reversed the trial court's grant of removal, holding just because a parent would be happier does not mean the parent has met the burden of proof. (#27) The failure to prove indirect benefits to the child was fatal to the mother's claim.
In another case, IRMO Clark, a lack of evidence as to how the living conditions of the custodial mother and child's respiratory conditions would improve was fatal to the removal petition. (#28) The mother's new husband had found a new job in Tennessee but had not looked in Illinois. The indirect benefit of the mother's being with her husband was not sufficient reason to allow removal.
On the same day IRMO Clark was decided, the fourth appellate district in IRMO Deckard allowed removal on similar facts. Similar to Clark, the new husband of the custodial mother in Deckard could not find work in Illinois, had used up his unemployment benefits, and found an out-of-state job. In Deckard, however, the appellate court deferred to the trial court findings, saying there was definite economic necessity. (#29) A more compelling case for allowing removal was IRMO Herkert, where the custodial parent and her new husband were deeply in debt and the new husband was underemployed, despite his searching for a full-time job for almost a year. The custodial mother was unemployed for about one year. The new husband also testified his current income was insufficient to meet expenses. The review court again said necessity compelled the move, noting some visitation problems were caused by the noncustodial father. (#30) Consequently, removal was allowed.
The foregoing cases show that, like the first appellate district, the fourth appellate district accepts economic necessity as a weighty "factor" toward allowing removal. IRMO Clark represents a possible exception to the necessity rule, but the result can also be explained by the custodial mother's failure to show benefits to the children.
IRMO Hefer, (#31) however, demonstrates a case in which the fourth district appellate court appears to be approaching a more mainstream consideration of removal. There where the appellate court reversed the trial court's allowance of a removal case. The fourth district held that the removal statute applied to cases in which the party seeking custody has moved to another state before a permanent order of custody is entered. It then stated that Although indirect benefits may be considered . . ., requiring children to leave familiar surroundings and establish new relationships with friends and community members often burdens children with stress and pressure. Removal is often harmful to visitation. (#32) (emphasis added). Thus, the court changed from viewing indirect benefits as a deciding factor to only an optional consideration, and in fact did not discuss whether there was any economic necessity for the father's move in this case. In doing so, the Hefer court cited the Smith Supreme Court decision.
The factors favoring the father in Hefer were: 1) both children testified in camera that they wished to live with the father; 2) one child testified in camera that their mother screamed at him when she got mad; 3) the children adjusted to living with their father during the period in which there was an appeal. On the other hand, several factors favored an award of custody to the mother (and a reversal of the removal decision): 1) the mother had a history as the primary custodian, 2) there was no serious objection to the mother's care of the children, 3) the children had an established home and friends in Illinois; and 4) while the matter was being considered by the trial court, the father interfered with the mother's visitation. In reversing the decision and remanding the matter for reconsideration of the initial custody award, the appellate court commented that, the trial court may conduct a brief hearing at which the parties may update the evidence presented at the last hearing, including the children's adjustment to their home, school and community in Indianapolis.
Hefer fits within the economic necessity analysis of the case law since the record on appeal did not appear to support any finding why it was economically necessary for the father to move out of state. The economic necessity cases are those cases in which a party will endure a significant financial penalty if leave to remove is not granted. In Hefer, there was no showing that there record that there would be a financial penalty to the father if removal were not granted.
C. The Fifth Appellate District
The fifth appellate district holdings appear in line with the first and fourth appeals districts. In the three cases dealing with removal, Zamarripa figures prominently.
Firkus: In the 1991 case of IRMO Firkus, the fifth appellate district court affirmed, almost without discussion, a trial court's directed judgment that the custodial mother had failed to show removal to Florida was in the best interest of the child. The appeals court did not question whether a prima facie case had been presented. (#33) In dissent, Justice Welch compared the case to the first appellate district's Zamarripa-Gesundheit, calling the cases similar and saying removal should have been allowed, based on indirect benefits. (#34) The dissent looked at the financial strain on the new husband and the custodial mother as a basis for allowing removal. The dissent also said the new husband was unable to find work in Illinois, so his motive in moving to Florida was full-time work. In fact, the new husband found work in Florida in 15 days, while an Illinois job search between six months and one year was ineffective. (#35)
Shelton: The holding in Firkus is nearly contrary to the holding in IRMO Shelton, decided earlier in 1991. In both cases, the appellate court merely affirmed the trial court. In Shelton, the appellate court affirmed a trial court grant of removal based upon indirect benefits. (#36) The mother sought to remove the children to Florida after her new husband found a job in Florida, and the new husband was unemployed in Illinois. He was somewhat disabled by a back injury, indicating work was difficult for him to find. The homes in Florida and Illinois were substantially similar. The father exercised visitation rights, and the mother said his visitation rights would increase if the removal was allowed. In its holding, the appellate court said the father's visitation often consisted of the children helping with chores. The Shelton court turned to Zamarripa, holding the trial court decision to allow removal was not against the manifest weight of the evidence. In Florida, the mother would remain at home with the children, and if the mother would become employed in Florida, there would be two incomes. (#37)
As in Firkus, there was a dissent. Justice Chapman criticized the appellate district court for allowing the removal "with absolutely no evidence as to how these children will be supported." In addition to characterizing evidence surrounding the new husband's employment in Florida and Illinois as inadmissible hearsay, Justice Chapman said the majority ruling shifted the burden of proof onto the noncustodial parent. (#38) There was no evidence of the salary to the new husband, and the mother failed to establish any enhancement to the children's lives as a result of the move. (#39) Therefore, removal was against the manifest weight of the evidence, according to the dissent.
Pribble: Another case in the fifth appellate district sides with the Firkus majority, but on facts more favorable to removal. In IRMO Pribble and Wagenblast, the custodial mother sought to remove the children to Ames, Iowa from Alton, Illinois. The mother had remarried; the new husband, a doctor, moved to Ames about 4½ months before the remarriage. In Ames, the new husband earned between $150,000 and $250,000 per year, so the mother would not have to work. Additionally, Ames offered cultural opportunities and a good school system. On the other hand, the father exercised visitation with his children regularly. The trial court denied removal, saying it was not in the best interests of the two children.
The fifth district appeals court reversed. (#40) It noted there were no questions regarding the motive of either parent. It was important to the fifth appellate district that if removal was allowed, the mother would not work outside the home, so there was no need for day care. The majority turned again to Zamarripa, holding the noncustodial parent's desire for day-to-day contact was insufficient to keep the mother in Illinois. (#41)
The fifth appellate district's consideration of necessity is less clear than the consideration given in the first and fourth appellate districts. However, the facts indicate that necessity was at least a secondary consideration. In Firkus, the dissent shows economic necessity warrants consideration; in Shelton, the difficulty of the new husband in finding work due to his back injury warranted consideration. Finally, in Pribble, the new husband's career as a doctor, similar to the attorney in Eaton, is not readily movable. Therefore, the fifth appellate district shows a tendency toward economic necessity as a basis for allowing removal, although it has never directly stated so.
Krivi: In IRMO Krivi, (#42) the Fifth District took a more moderate view, holding that removal of the children to Minnesota from Mt. Vernon in southern Illinois was not in their best interests.
In February 1991 the wife moved from Mt. Vernon, Illinois, taking her two children with her to a town in Minnesota, approximately 850 miles from Mt. Vernon. In April 1991, the wife filed a petition for dissolution of marriage, which resulted in a dissolution order in April 1992. The wife then remarried, and continued to live in Minnesota during these proceedings. In April 1993, when the children were ages 6 and 4 ½, the trial court entered a final judgment as to remaining issues, awarding custody to the wife and approving her petition to remove the children. The husband's visitation included three or four long weekends per year, half of Christmas vacation, spring and Thanksgiving vacations in even years, four weeks in the summer, and one additional weekend each month. The wife was ordered to defray the husband's transportation costs for his trips to Minnesota.
The husband in Krivi appealed the trial court's ruling which allowed the wife to remove the children from Illinois. The appellate court reversed, ruling that the trial court's decision was against the manifest weight of the evidence and had caused a manifest injustice.
The appellate court applied the Eckert factors:
1. The likelihood that the proposed move will
enhance the general quality of life for both the
custodial parent and the child. The wife testified that
there was no financial incentive to leave Mt. Vernon;
that the home, education, and babysitting
arrangements in Mt. Vernon were adequate for the
children; and that there was nothing to prevent her
from moving back to Mt. Vernon.
2. The motives of the custodial parent in seeking the move. There was evidence of a physical altercation (slapping) between the parties, after which the wife sought treatment at a hospital emergency room. The wife continued to reside with the husband for five months before moving. The evidence showed this was an isolated incident, and the wife testified that she wanted to live in Minnesota because her mother and siblings live there.
3. The motives of the noncustodial parent in resisting the removal. No evidence was presented that the husband was motivated by anything other than a desire to maintain close contact with his children. He testified to having an excellent, close relationship with the children.
4 & 5. The visitation rights of the non-custodial parent and whether a realistic and reasonable visitation schedule can be reached if the move is allowed. The evidence showed that it took 16 hours to transport the children each way for visitation. During the school year, the husband was required to make the trip by himself to pick up the children and return them:
Traveling 3400 miles makes a weekend visit in Mt. Vernon an impossibility. It takes four 16-hour days to travel 3,400 miles. . . . Under the trial court's visitation schedule, most of the visitation time respondent has with his children is spent traveling in a car. . . . The net result of the trial court's visitation schedule is to deny Respondent any meaningful contact with his children.
Sale: Finally, the Fifth District demonstrated the fact that post-Collingbourne although there may be an economic improvement in the custodial parent's lifestyle due to a remarriage (with benefits that might indirectly trickle down to the child) in the situation where the proposed move is made virtually immediately after the divorce decree (and joint parenting agreement), the courts will closely analyze the effect upon the non-custodial parent's parenting time. IRMO Sale, 347 Ill.App.3d 1083 (Fifth Dist. 2004). In Sale, the parties had one child, who was born in 1997 and the parties separated in October 2001. The wife filed her divorce petition in February 2002 and the divorce judgment and JPA were entered on October 8, 2002. Under the JPA the former husband had parenting time from 5:30 to 8:00 p.m., and on alternating weekends, etc. On October 9th, the ex-wife remarried a man from Washington state and on the 29th of that month she filed her petition to remove. The evidence indicated that the ex-wife earned $8,000 in Illinois and would earn $10,000 in Washington. However, her new husband owned a three bedroom home located on 25 acres. He earned $62,000 annually as one of four partners in a steel fabricating business. The home was only a few blocks from the school where the minor child might attend. There was evidence as to class size being smaller in Washington state but there was no evidence of "test scores or benefits or drawbacks of either school." The ex-wife testified that day care would be eliminated in the state of Washington because of the work schedules of the ex-wife and her new husband. There were several relatives in Illinois including cousins with whom the child had regular contact. The ex-husband testified that neither he nor his family had the financial means to travel to Washington should the removal be granted. The trial court stated, " I found the testimony concerning the improvement in her lot on that point to be rather speculative. Quite frankly, it's obvious to this [c]ourt that the-that this move would not be taking place but for the relationship with Mr. Newton... But the point is that is a relationship taken up that results in a change almost immediately-actually it was in anticipation of the impending dissolution." The court then stated, "I certainly-I was impressed by Mr. Newton. It has absolutely nothing to do with him. I'm quite willing to believe that-that this is an improvement in [the petitioner's] lot in life. If the relationship with Mr. Newton appears to be a loving relationship, and I'm sure that's quite the case, but the problem is that coming right on the heels of the Joint Parenting Agreement, I don't believe it's justified to the extent of removing a child and taking him as far away as you can in these United States[-] away from the other parent, and for those reasons, I'm denying the application for removal."
The appellate court examined the economic impact and stated, "We agree that the petitioner's life stands to be enhanced by the economic security her new husband can provide by virtue of his job and home, but we must look to more than economic factors." However, the court found that noneconomic factors did not favor the removal. First, the appellate court pointed out that there was no evidence showing the improvements of schools in Washington versus Illinois. Additionally, there was no evidence as to better or more plentiful cultural or recreational opportunities in Washington. As to the testimony that the work schedule in Washington would be favorable the appellate court commented that the ex-wife worked part time in Illinois. As to the step-father's potential involvement the appellate court commented, "Nor is it enough that the petitioner's new husband appears to be sincere in his desire to be a good stepparent, because the facts also indicate that the biological father is more than willing to be involved in D.S.'s life and assist him in extracurricular activities as he matures." Regarding the relationship with relatives the appellate court noted the close relationship with grandparents, aunts and uncles in Illinois and therefore stated that the relationships with the child's extended family would certainly suffer if removal were granted. Thus, the court stated, " Overall, the testimony did not indicate that D.S.'s quality of life would improve by removing him from Illinois."
Regarding the effect upon the father's parenting time and whether a realistic and reasonable visitation schedule could be accomplished, the appellate court noted that the father had been diligent in exercising his visitation. The mother proposed that if removal were granted, the father could have parenting time for the majority of the holidays and the majority of the summer (excepting the first two weeks and the last two weeks of the summer). The appellate court stated, "This schedule would not only reduce the number of actual days the respondent sees his son but also leave large gaps in time between visits. We agree with the respondent that this would not assist him in maintaining a close relationship with his son, especially as D.S. matures and develops his own friendships. It will become increasingly difficult for D.S. to leave his friends for the extended periods of visitation proposed by the petitioner."
It appears that the timing element
of the case was critical where the appellate court specifically noted, "The
petitioner is correct that there is nothing to prohibit her from petitioning
for a removal any time she desires; however, we believe that the fact that she
did so three weeks after signing a joint-parenting agreement was a relevant
factor for the trial court to consider. It is also relevant that the petitioner
married as quickly as she did after her divorce and that she married a man she
had not spent much time with prior to the marriage, due to the distance between
them." Therefore, the appellate court ruled that the trial court's
decision was not against the manifest weight of the evidence and affirmed the
IV. APPELLATE DISTRICTS THAT
DID NOT ADHERE TO
THE NECESSITY RULE
The "indirect benefits" test plays a prominent role in those districts in which economic necessity is not a major factor. Indirect benefits are benefits to the parent. The benefits are deemed benefits to the child, on the theory that a better life for the custodial parent must have positive effects on the child. The second district rejects indirect benefits to the child as a basis upon which to allow a removal. The third district, on the other hand, recognizes indirect benefits to the child and has applied the test so liberally as to allow virtually all removals. Because of these polar extremes regarding indirect benefits in the second and third districts, no economic necessity doctrine has emerged.
A. Second Appellate District
Following Eckert, the second appellate district historically had not accepted indirect benefits as a basis for removal, focusing instead on the direct benefits to the child, economic necessity has never provided a compelling basis for removal.
Second District Case Law Prior to Collingbourne: Prior to Collingbourne, 204 Ill. 2d 498 (2003), only once, in IRMO Gratz, had the second appellate district allowed a removal -- in a published opinion. The mother remarried, and the new husband had substantial property holdings in Arizona. There was testimony that the child, a 9-year-old, had severe allergies, and the allergic condition improved while the boy was in Arizona. There was also testimony that the mother's new husband snored loudly while in Illinois, but his snoring was reduced in Arizona such that the mother was able to sleep better. A court-appointed conciliator recommended against removal, based on the child's relationships with his friends and the fact that ignoring the child's wishes might make the child insecure. The trial court denied the petition for removal and modified custody in favor of the father if the mother insisted upon moving.
In reversing, the second appellate district held the trial court improperly considered evidence that would be proper in making a custody determination, including evidence of the custodial preference of the child and expert opinion that the father would be a better custodian. (#43) Furthermore, the trial court reached its decision based upon the improperly-considered custody evidence. Had the improper evidence not been part of the determination, the appellate court said, removal would have been allowed. Therefore, there was no evidence upon which to deny removal, but there was evidence upon which to allow removal.
All other published second appellate district holdings had strictly applied the Eckert factors toward denying removal. Marriage of Kutinac is illustrative. The custodial mother wished to remove to Florida with the marital children. The mother lost her driver's license and feared getting a new one due to epileptic seizures. Because of the seizures, the mother and children were forced to use bicycles and public transportation, both of which would be easier in Florida. The mother testified reduced stress caused by the transportation problems would improve her epilepsy. One child also suffered ear infections in cold weather. Testimony as to the father's visitation schedule was conflicting, the mother saying he saw the children approximately every 2½ months and the father saying he saw the children every weekend and on weekdays.
The second appellate district did not look at indirect benefits to the mother. The only evidence concerning the child's well-being was offered in a doctor's letter. The appeals court found the evidence was hearsay not within an exception, so the trial court erred in admitting the evidence. (#44) Thus, despite overwhelming evidence the mother's life would improve, the appellate court found insufficient evidence regarding the children and denied removal. (#45) Similarly, the second appellate district affirmed denial of removal petitions where the removal would be to Canada in IRMO Berk, holding the increased standard of living did not offset the reduction in visitation (#46) ; and in IRMO Jaster, where a mother wanted removal to Florida, because appeals court found the father was an "exemplary parent." (#47)
Prior to the Supreme Court's Smith decision it appeared that the second appellate district was not likely to look at economic necessity. Kutinac rejected indirect benefit to the mother as sufficient reason for removal, and the line of cases in which a removal denial was affirmed indicates removal is not in favor in the second appellate district. The only case allowing removal, Gratz, concentrated on direct benefits to the child. Consequently, indirect benefits are apparently not sufficient to allow removal in the second appellate district, and the likelihood removal will be denied is high.
In IRMO Collingbourne, 332 Ill. App. 3d 665 (2nd Dist. 2002) the second appellate district appellate court had ruled that it was insufficient to focus only on the improvement in the custodial parent’s life because this is significant only to the extent that it increases and furthers the child’s quality of life. The Second District appellate court reversed the decision of the trial court and ruled that direct benefits of the removal must be proven. The Illinois Supreme Court reversed this decision in 2003. (See further discussion below).
Stahl - Move to Wisconsin Not Allowed: In May 2004, the Illinois Second District appellate court appeared to give short-shrift to the Collingbourne Supreme Court decision. IRMO Stahl v. DeLeo, 348 Ill. App. 3d 602 (2nd Dist. 2004) (Justice O'Malley). In Stahl, the Second District affirmed the trial court’s determination that mother failed to prove that removal of children from Illinois to Wisconsin would be in children’s best interests and found that the ruling was not against manifest weight of evidence. Stahl involved a proposed move from Kane County to Cederburg, Wisconsin (a picturesque city 20 miles north of Milwaukee in Wisconsin with many B&Bs, etc.) In Stahl the mother was engaged to a man who lived and worked in the Cederburg area.
In Stahl, the Second District appellate court stated simply that the trial court had properly considered all Eckert factors and direct as well as indirect benefits to children in its determination. The trial court then rejected the mother's argument that the decision was in direct contravention of the Supreme Court's Collingbourne decision. It was noteworthy that one justice of the three justice panel dissented (Justice Bowman).
Matchen -- Another Move to Wisconsin Not Allowed: In April 2007, the Second District appellate court again appeared to take a restrictive reading of the Collingbourne decision. IRMO Matchen, 367 Ill. App. 3d 695 (2nd Dist., 2007). The mother appealed from the order of Judge Michael Feetterer denying her petition for leave to remove the parties' two minor children from Illinois to Wisconsin. On appeal, the mother argued that the trial court findings were against the manifest weight of the evidence. The appellate court affirmed the decision of the trial court. In this case, the mother was engaged to an individual who after working 22 years in Hoffman Estates retired to 88 acres of land in the Wisconsin Dells area that are held in a trust for him and his brother. The land has been in his family since 1955. The mother was engaged but had not yet married her prospective new husband – pending the results of the removal hearing. The mother was a house cleaner who worked fifteen hours weekly and had a relatively nominal gross income (under $8,000 annually). The mother further testified that she currently rented a “run-down, three-story home, one block from Highway 120 in McHenry.” She testified that there is constant traffic in front of her house and to other problems with the rental property and location. There was also significant testimony as to the advantages of the proposed new property in Wisconsin: 88 acres, quite neighborhood, three bedroom house, pond, etc. There were extended families in both locations. Questions of the wife’s finace’ as to the possibility of moving back to Illinois included the following:
A: Well I would have to say where I live now it's been a 30 year dream and I have been working on this very very hard for the second half of my life to develop what I have. It would be an extremely difficult decision. It would be hard. I suppose if I had to -- I can't sell the property because it's in a trust. It can't be divided or sold so certainly I would like to reside somewhere in a rural area. I pretty much had my fill of the city.
Q: Would there be any place in Illinois that you would consider living?
A: More likely it would be back in the farmlands again south. I enjoy the south.
The fiancé, testified that if removal were not granted that he did not intend to break off his relationship. However, he stated that the financial assistance he provided would be difficult to maintain if removal were not granted. The mother proposed that the father have an extra week in the summer. The mother also proposed that in lieu of the one evening per week that the father could have three day weekends if such a weekend occurred when he had the children. In addition, she proposed that the father could have an additional hour for Sunday drop-off time (to 7:00 p.m.) She proposed meeting the father half way for pick up and drop off for the 1.5 hour trip each way. The father objected to the loss of 52 weekday visits. Both children testified in camera that they did not want to move to Wisconsin. The court found that it was unclear that the move would enhance the general quality of life for the children because of their strong ties to family, friends and the McHenry community.
The court found that, "while [respondent's] proposed visitation schedule appears reasonable at first blush, the court will not make Jeffrey and Jessica change schools, leave their friends and much of their family, sit in a car for six hours every other weekend in order to see their father, and eliminate their time with their father during the week, simply because Mr. Mayer chooses not to move if he can avoid it." The court further found that the negative aspects of the children's current living situation in McHenry exist, in large part, due to the mother’s decision to work only 15 hours per week. (She testified that she had not looked for other work in the past two years).
Of significance the appellate court agreed with the trial court’s finding that the:
respondent's proposed schedule was reasonable only "at first blush." This conclusion is supported by the record. For example, making up for the loss of weekday visitation by offering petitioner time with the children on three-day weekends initially appears reasonable. But, upon closer examination, it appears respondent offers those weekends only if they happen to fall on petitioner's already-scheduled weekends. This would do essentially nothing to offset the 52 lost weekdays per year. Also at first blush, offering petitioner alternating spring breaks appears reasonable, but, upon closer examination, it is clear that he is already entitled to alternating spring breaks pursuant to the dissolution judgment.
The appellate court commented that
the father exercised his parenting time “religiously.” The dissent by Justice
Bowman should be noted.
Repond - Move to Switzerland Allowed: The results of IRMO Repond, 349 Ill. App. 3d 910 (2nd Dist. 2004) show that the Second Judicial District appears to have one panel clearly rejecting the reasoning of the Stahl decision and taking a much more permissive view of whether to grant removal. In Repond, the appellate court found that the trial court's decision denying the mother's petition to remove the children to Switzerland (where she had employment offers that would enable her to pursue her career as physicist, after being unable to find suitable employment in Illinois) was against manifest weight of the evidence. The significant factors were that the father had exercised only half his allotted visitation, had family in Switzerland, could visit the children during several business trips he took each year to Europe, and would not allow children to live with him. Mother, on the other hand, could provide suitable housing with her new husband, livelihood, education, and extended family, if petition were allowed. The appellate court then discussed the Stahl decision because it could be urged that Stahl is not consistent with the ruling in Repond. The Repond appellate court stated:
We recognize that in Marriage of Stahl, *** , this court recently considered a trial court's denial of a mother's petition to remove her children from Illinois to Wisconsin. On review, the Stahl majority applied the five factors identified in Eckert and affirmed. Stahl, slip op. at 13-15. It is not clear from the opinion whether the trial court was aware of Collingbourne and applied the five factors in the context of Collingbourne. The majority in Stahl affirmed the judgment by stating:
"Here, we do not believe that the trial court considered only the direct benefits the children would incur if Lisa's removal petition was granted. Rather, the record reveals that the trial court considered all of the possible benefits to the children and determined that there was 'no substantial evidence of enhancement in the quality of the lives of the children either directly or indirectly.' As such, Lisa's contention is without merit." Stahl, slip op. at 16.
The majority did not reconcile the Collingbourne perspective and the trial court's finding wherein the trial court stated:
"The court does not believe that either party has impure motives, but does believe, based upon the evidence, that they have each been spurred on in this litigation by a desire to improve his or her own life, rather than by an objective view of the best interests of the minor children." Stahl, slip op. at 12.
The majority opinion did not address the apparent conflict between Collingbourne, which notes the interrelationship between the quality of life of the custodial parent and the quality of life of the child, and the trial court's finding that there was no substantial evidence of indirect enhancement in the quality of the lives of the children. We believe that the majority analysis in Stahl sufficiently addressed neither the contextual changes Collingbourne imposed upon the factors set forth in Eckert nor the apparent inconsistencies between the finding of the trial court and the new perspective on benefits set forth in Collingbourne. To the extent that our decision in the present case represents a conflict of application or interpretation of authority within this court, we resolve this conflict by explaining our rationale of review. See 166 Ill. 2d R. 23(a)(2).
The case is good reading in any removal case. In its summary Justice Hutchinson aptly states:
The purpose of a published opinion is to develop and maintain a coherent body of law. Siegel v. Levy Organization Development Co., 153 Ill. 2d 534, 544 (1992). To this end, it is imperative that a reviewing court set forth a rationale, discussing relevant case law pertaining to the issues. Siegel, 153 Ill. 2d at 544-45. Although we recognize that removal requests must be decided on a case-by-case basis (Eckert, 119 Ill. 2d at 326), we believe that our consideration here of the entire body of supreme court precedent pertaining to removal is more thorough than that presented in Stahl. We believe that this published opinion will provide future guidance to trial courts and parties in this sensitive area of removal.
Johnson -- Move to Arizona Not Allowed in Decision Following Stahl : The permissive attitude of three of the Second District appellate court justices in Repond is tempered with the more restrictive ruling in the recent IRMO Johnson decision, 352 Ill. App. 3d 605, 287 Ill. Dec. 480 (2nd Dist. 2004). Johnson ruled that the trial court’s decision to deny petition by mother, the physical custodian, to remove the minor children to Arizona was not against the manifest weight of the evidence in light of the trial court’s conscientious application of Collingbourne, and Eckert, the close and beneficial relationship between the children and their father, which would be adversely affected by removal, and the children’s desire not to be separated from their friends and family in Illinois. The Johnson court noted the apparent conflict with Repond when it stated:
We are mindful that our decision may, at first glance, seem at odds with this court's recent decision in Marriage of Repond, 349 Ill. App. 3d 910 (2004). In Repond, this court applied the Eckert factors and reversed a trial court's ruling denying the custodial parent's petition to remove the children to Switzerland. Repond, 349 Ill. App. 3d at 917. The Repond court then went on to state its disagreement with another recent decision of this court in Marriage of Stahl, 348 Ill. App. 3d 602 (2004), which affirmed a trial court's denial of a custodial parent's petition for removal to Wisconsin. Repond, 349 Ill. App. 3d at 920-21.
The court then emphasized its agreement with the reasoning in the Stahl decision stating, "This court stands by the Stahl case as being sound in reason and consistent with our supreme court's pronouncements in Eckert and Collingbourne." The court concluded:
There are several other important aspects to Collingbourne that must be emphasized, besides the nexus between the well-being of the custodial parent and the well-being of the child. Indeed, after explaining the connection between the well-being of the custodial parent and that of the child, the Collingbourne court went on to further explain:
"Our decision today, however, should not be interpreted as standing for the proposition that any enhancement in the quality of life of the custodial parent automatically translates into an improvement in the quality of life for the child, or that such benefits will always be sufficient to warrant removal. However, we emphasize that because there is a nexus between the well-being of the custodial parent and the child who is in this parent's care, all benefits afforded to the child as a result of the move must be considered by the circuit court in making its best interests determination. We caution, however, that in making this determination, a circuit court should not limit its examination solely to enhanced economic opportunities for the custodial parent. A court must also consider other noneconomic factors resulting from the move which are likely to contribute to, or detract from, the well-being and happiness of the custodial parent and the child." Collingbourne, 204 Ill. 2d at 528.
We reiterate that a child's best interests cannot be determined on the basis of any bright-line rule. Eckert, 119 Ill. 2d at 326; Smith, 172 Ill. 2d at 321. Rather, a child's best interests largely depend upon the circumstances present in the case. Eckert, 119 Ill. 2d at 326; Smith, 172 Ill. 2d at 321. Furthermore, the weight accorded to each Eckert factor will vary according to the facts of each particular case. Smith, 172 Ill. 2d at 321. A careful reading of both Repond and Stahl will reveal that the facts and circumstances surrounding Repond were vastly different from those surrounding Stahl. Indeed, rarely will the facts and circumstances in two separate removal cases be comparable. Reviewing courts and trial courts alike should take care to review the particular facts of each removal case, as one case is likely distinguishable from the next.
The case at hand is certainly distinguishable from Repond. In Repond, the noncustodial parent was not involved in his children's lives. Repond, 349 Ill. App. 3d at 919. He had exercised only half of his allowed visitation with the children. Repond, 349 Ill. App. 3d at 919. He did not attend the children's extracurricular activities. Repond, 349 Ill. App. 3d at 919. He did not allow the children to bring friends over. Repond, 349 Ill. App. 3d at 919. Moreover, he even refused to allow one of the children to live with him. Repond, 349 Ill. App. 3d at 920. However, in the present case, Joseph is a loving, involved parent whose life revolves around his children. He is a parent who possesses a unique and strong bond with his children; a bond that, if broken, could be detrimental to the children.
Main - Move to Florida Allowed Despite Mother's Losing First Removal Petition: A post-Collingbourne decision from the Second District was the Main decision, 361 Ill. App. 3d 983 (Second Dist., 2005), in which the Second District appellate court followed Collingbourne and allowed a removal to Florida. What was remarkable about Main is that the removal was affirmed on appeal despite the fact that the petition was filed only two years after the court had awarded custody to mother the on the condition that she relocate children back to Illinois from same location in Florida to which she proposed to move. One of the key aspects of this case was that when the mother moved back to Illinois, she moved to Marshall, a city which is in downstate Illinois -- and only several miles from the Illinois / Indiana border. The significant quote in Main stated:
In the unpublished order, this court noted that "[respondent] presented no evidence that her employment or housing opportunities in Florida were better than those available in Illinois." Main, slip op. at 6. Here, on the other hand, respondent testified regarding the superior employment opportunities awaiting her in Florida, and she also described the much larger house her mother owns in Florida. While we do not have the transcript of the original divorce proceedings, the trial court acknowledged in its written opinion that, though the facts underlying each of respondent's attempts to move to Florida were similar, there were significant differences in that respondent had lost her job and demonstrated that she received much lower pay in Illinois and that, when she moved back to Illinois, respondent chose to relocate 4½ hours away from petitioner's home. We therefore disagree with petitioner's characterization of the testimony here as identical to that presented during the original divorce proceedings. Regardless of the testimony during the divorce proceedings, we hold that the trial court's finding here was supported by ample evidence, because, as noted, respondent testified regarding the improvement in employment and housing opportunities that awaited her move to Florida. Further, the fact that respondent chose to live so far from petitioner upon relocating to Illinois had a significant impact on the trial court's finding that a move to Florida would be in the children's best interests.
In somewhat of an understatement, the court then stated:
We recognize the implication here that the law with regard to removal is subject to some abuse by a custodial parent who can move far away from the noncustodial parent, yet stay within Illinois, and then request removal to a different state on the basis that removal would not increase the travel time for visitation. It is true that section 609 of the Act does not apply to intrastate transfers and that a custodial parent need not obtain permission from a court before moving to another location within Illinois. Marriage of Means, 329 Ill. App. 3d 392, 394 (2002); see Marriage of Wycoff, 266 Ill. App. 3d 408, 416-17 (1994) ("[custodial parent] cannot be criticized for her decision to *** move to [a more distant city within Illinois], in the absence of any showing that she did so in an attempt to frustrate visitation or interfere with the relationship between [the child and the noncustodial parent]"). However, in this case, in evaluating the second Collingbourne factor, the trial court expressed its concern for respondent's choice to relocate 4½ hours away from respondent upon moving back to Illinois. Thus, respondent's motives in relocating to a city so distant from petitioner were included in the trial court's weighing of the Collingbourne factors to decide whether removal from Illinois was proper.
Further, in considering issues other than removal, such as custody, a trial court could certainly consider whether a custodial parent's moving far away (within Illinois) from the noncustodial parent was motivated by a desire to frustrate the noncustodial parent's visitation rights. Marriage of Divelbiss, 308 Ill. App. 3d 198, 207-08 (1999) (affirming trial court's decision to change primary residential custody to father because mother interfered with father's visitation); see Wycoff, 266 Ill. App. 3d at 416-17 (trial court's decision to change primary custody of children to father may have been tenable with showing that mother relocated in order to frustrate visitation). Therefore, we conclude that it would have been improper for respondent to interfere with petitioner's visitation by moving to Marshall in order to facilitate removal to Florida, even if the move to Florida itself was not improperly motivated. However, here, the trial court considered any indications of respondent's possible improper motive in moving to Marshall in reaching its best-interests determination.
B. Third Appellate District
Prior to Collingbourne, it had appeared that the Third District case law reflected a trend toward allowing removal. Other than the recent Hansel and Elliott case, in only one case was removal not allowed, and in that case the facts are highly unusual. In all other pre-Smith and Elliott cases, the third appellate district allowed removal, three times overturning trial courts. Therefore, prior to Smith, the third appellate district shows a tendency toward allowing removal.
The facts in the third appellate district's lone denial, IRMO Creedon, were highly suspicious as to the motives of the mother. She sought to remove two teen-age boys to Texas. The mother wanted to move because her brother lived in Texas and because she would live only 6½ hours from her hometown. The mother, a school teacher, would have increased salary. On the other hand, the father, an attorney, exercised his visitation rights regularly after the divorce.
The critical factor in denying the removal was that the petition for removal was filed only 15 days after a marital settlement agreement between the parties was signed. The appellate court affirmed the trial court's denial. (#49) "It seems obvious that [the mother] sought to obtain the benefits of the agreed order but not bear the burdens," the reviewing court wrote in commenting upon the timing of the petition. The opinion went on to hold that the existence of a joint custody order could be considered in determining the child's best interests. Furthermore, the trial court could have properly allowed removal, but also could properly deny it, given the facts of the case. (#50) In other words, the trial court denial was not against the manifest weight of the evidence and was upheld.
With the exception of Creedon and the recent Hansel and Elliott decision, the third appellate district has allowed removal. Three times, allowing removal meant overturning trial court denials of removal. In IRMO Good, the custodial father sought removal to Michigan because of a job change. The appellate court noted the extended travel for the mother to have visitation. The appellate court also found the lives of the children would be the same in Illinois and Michigan, but the move was necessary to further the father's career. (#51) Because of direct benefit to the parent, the move should have been allowed, because maintaining the current custodial arrangement was in the best interests of the children.
Similarly, in IRMO Carlson, the indirect benefit of the effect on the custodial mother from a new, successful marriage gave the appeals court reason to overturn the trial court denial of removal. (#52) And in IRMO Ballegeer, the appeals court saw in the custodial parent's salary increase, opportunity for career advancement and greater cultural activities sufficient indirect benefits to reverse the trial court. (#53)
Recently, in IRMO Hansel,
(July 2006), the Third District appellate court affirmed the denial of a petition
for leave to remove a child from Illinois to North Carolina. The mother
sought removal to accommodate mother's pending marriage to self employed fiancé
whose income was sufficient to enable mother to stop working outside of the
home. The appellate court stated that the ruling was not against the manifest
weight of the evidence in light of the eight year old child's close relationship
with her father, and extended family, and testimony of a psychologist (a 604.5
expert) that removal would actually harm child. The Section 604.5 expert pointed
out that research showed to his satisfaction that adolescent girls whose fathers
are relatively absent from their lives have greater social problems than girls
with fathers active in their lives. The 604.5 testimony was not refused by other
As the foregoing case law illustrates, the third appellate district had historically favored removal based on indirect benefits. Only two cases denying removal have been affirmed, and the facts of Creedon show why it does not fit the mold. Elliott represented strong facts suggesting an affirmance of the denial of the removal, especially where a child's in camera testimony strongly suggests there may have been improper motives by the custodial parent. Hansel could be viewed as a case where there was expert testimony of harm and thus does not necessarily break with the above line of cases reflecting a historical leniency in allowing removal. Instead Hansel may be seen as reflecting the pendulum swinging back to the middle post-Collingbourne where removal cases tend to be decided more based upon the facts than the District where the case is brought.
V. 2007 SIDE AGREEMENT CASE
A 2007 case which addresses the impact of a "side-agreement" allowing removal was IRMO Boehmer, 371 Ill. App. 3d 1154 (Second Dist., 2007).
Boehmer held that the trial court erred when it entered a post-divorce order incorporating the earlier side agreement between the parties (“without court approval or participation”) allowing for the removal of the minor child to Louisiana. In this case the side agreement was notarized. The side agreement also provided for explicit visitation and for items such as payment of transportation expenses. The father in this case filed a petition seeking to enjoin the mother from removing the child from Illinois. The appellate court ruled that the trial court erred when it failed to make an independent determination as to the child’s best interest. It stated that the Father’s current protest refuted any assumption of best interests that could be drawn from the agreement. The appellate court noted that the, “plain language of Section 502 [of the IMDMA] states only that parties' agreements regarding custody, visitation, and support are not binding on the court.” In somewhat dangerous language the court stated, “Thus, while the court is not bound to accept parties' agreements concerning custody, visitation, and support, the plain language of Section 502 does not prohibit the court from accepting agreements as to these matters without further inquiry. The appellate court stated that the court was not required to make an independent determination of best interest before entry of the agreement as the court’s order.
Next, however, the father urged that despite the parties' agreement, §609 of the IMDMA required the trial court to hear evidence as to his daughter’s best interests. The appellate court articulated the issue as to “whether, in a post-decree environment, §609 required the trial court to independently consider factors concerning Caylee's best interests prior to entering as an order the parties' agreement to removal.” The appellate court then stated, “Similar to the Ayers court's analysis of §602, we do not believe that §609 necessarily requires an independent examination of factors concerning best interests when the parties agree regarding the removal of a child.” The limited nature of the opinion was clear, however, when the appellate court ruled, “That being said, the facts presented in this case do not concern an uncontested agreement.” The key quote from the case stated:
Section 609 places on the party seeking removal the burden of proving that removal is in the best interests of the child. Although as discussed above, parental agreement generally indicates that removal is in the child's best interests, in this case respondent's argument that removal was not in Caylee's best interests refuted any assumption of best interests that could be drawn from the agreement. A parental agreement symbolizes the child's best interests precisely because both parents affirmatively support the decision.
VI. COLLINGBOURNE AND CONCLUSION
The critical aspect of the Illinois' Supreme Court's Collingbourne decision was its discussion regarding indirect benefits. The decision attempts to strike the correct balance in emphasizing that especially in cases where there is a remarriage and greater economic opportunity for the custodial parent in light of the remarriage, sufficient benefits of the removal may be proven if there is not a significant impact on the other parent's overall parenting time.
In discussing the indirect benefit factor (whether the proposed move would enhance the general quality of life for both the custodial parent and the child, the Supreme Court Stated:
With respect to this factor, the circuit court held that [the Mother] met her burden of proof "by demonstrating that the initial disruption caused by the move would be outweighed by the benefits resulting from the move." The circuit court acknowledged that by allowing [the child] to be removed to Massachusetts, [the child] would be separated from his brother, he would be forced to leave his friends, and would lose the closeness of his relationship with his father as well as his extended family. However, the court also observed that by granting [the Mother] permission to remove [the child] to Massachusetts, [the Mother] could marry [the new husband], live in his home in Sharon, obtain employment with a greater salary, enroll [the child] in a school system which she believed offered her son superior educational and extracurricular opportunities, conform her work schedule to [the child]'s school schedule, and afford transportation allowing [the child] to spend as much time with his father as before the move. Although the circuit court found that [the child] did not derive a "direct" benefit from the move, it also found that [the child] derived a substantial "indirect" benefit from the enhancement of [the Mother]'s life should removal be allowed.
[The Father], echoing the apparent position of the appellate majority below, urges us to hold that a custodial parent seeking to remove a child must show a "direct" benefit to the child in order to sustain the removal petition. [The Father] also urges us to hold that any "indirect" benefits that may flow to the child as a result of an enhancement in the custodial parent's quality of life are insufficient to justify a child's removal from this state. Accordingly, [the Father] contends that because the circuit court determined that [the Mother] had failed to show that [the child] would reap a "direct" benefit from the move to Massachusetts, the circuit court erred in granting the removal petition, and the appellate court correctly reversed that judgment. We disagree.
As we emphasized in Eckert, the "paramount question" presented by removal cases is whether the move is in the best interests of the child. Eckert, 119 Ill. 2d at 325; see also 750 ILCS 5/609(a) (West 2000). In Eckert, we did not characterize the benefits a child may experience as a result of a move as "direct" or "indirect," and we find that such a distinction is not particularly helpful in assisting the circuit court in making the important determination of whether removal is in the child's best interests. To the contrary, this distinction may divert focus from the real issue of whether the child's general quality of life will be enhanced by the move. See Eckert, 119 Ill. 2d at 326-27. We reiterate our holding in Eckert that in conducting a best interests inquiry in the context of a removal petition, a circuit court must "consider the proposed move in terms of likelihood for enhancing the general quality of life for both the custodial parent and the children." (Emphases added.) Eckert, 119 Ill. 2d at 326-27; see also Smith, 172 Ill. 2d at 322-23. Indeed, "[i]f only the direct benefits that affected children were considered, rarely would a situation arise where removal would be permitted where children were in a good environment with good schools, good parents, and good friends." Marriage of Ludwinski, 312 Ill. App. 3d 495, 499 (2000). The vast majority of cases from our appellate court have correctly interpreted our decision in Eckert and, in determining the best interests of a child in removal actions, have appropriately considered the potential of the move for increasing the general quality of life for both the custodial parent and the child, including any benefit the child may experience stemming from the parent's life enhancement. See, e.g., Marriage of Shaddle, 317 Ill. App. 3d 428, 434 (2000); Ludwinski, 312 Ill. App. 3d at 499; Marriage of Miroballi, 225 Ill. App. 3d 1094, 1098 (1991); Marriage of Carlson, 216 Ill. App. 3d 1077, 1081 (1991); Marriage of Roppo, 225 Ill. App. 3d 721, 728 (1991); Marriage of Taylor, 202 Ill. App. 3d 740, 745 (1990); Marriage of Zamarripa-Gesundheit, 175 Ill. App. 3d 184, 189 (1988). It follows that what is in the best interests of the child cannot be considered without assessing the best interests of the other members of the household in which the child resides, most particularly the custodial parent.
Indeed, absurd results would occur were we to accept the contrary argument advanced by [the Father] that a custodial parent wishing to remove a child from Illinois must prove that the child will experience a "direct" benefit as a result of the move, and that proof the child will reap "indirect" benefits as a result of the enhancement in the quality of life for the custodial parent is insufficient to meet this burden. First, as stated, [the Father]'s position ignores the fact that the best interests of the child cannot easily be severed from the interests of the custodial parent with whom the child resides, and upon whose mental and physical well-being the child primarily depends. Because the principal burden and responsibility of child rearing falls upon the custodial parent, there is a palpable nexus between the custodial parent's quality of life and the child's quality of life.
This principle is illustrated in the case at bar. Upon dissolution of the marriage, [the Mother] was awarded physical custody of [the child] and has had to deal with all the day-to-day issues a single parent must face, including the child's physical and emotional well-being, the child's school performance, and the care of the child when he is not in school and [the Mother] cannot be with him. In addition, as evinced by the facts in the matter at bar, a single parent must also face a myriad of financial, social, and scheduling pressures, including the conflict between the parent's work schedule and the parent's desire to have the child become involved in extracurricular activities in which the child expresses an interest. At the time of the hearing on the removal petition, [the Mother] planned to marry a man who would provide her with love, economic security, and a comfortable home in a desirable location, and also be a partner and helper in rearing her child. It is in this new family structure that [the child]'s day-to-day routine and emotional interaction would be formed and influenced. Thus, it is reasonable to assume that there is a nexus between the quality of life of the custodial parent and the quality of life of the child.
Second, requiring a parent seeking removal to establish that the child would "directly" benefit from the move, to the exclusion of any "indirect" benefits experienced by the child, would mean that the remarriage of a custodial parent would rarely, if ever, provide a valid basis for removal. Requiring the custodial parent to meet such a heavy burden of proof would not only de facto eliminate the balancing process set forth in Eckert, but also impermissibly "allow[ ] a noncustodial parent who enjoys a good relationship with his child[ ] to veto the good-faith and reasonable desire of the custodial parent to remarry and move out of State without any consideration of what have been called the 'indirect benefits' to the child[ ]." Marriage of Eaton, 269 Ill. App. 3d 507, 514 (1995). Such a result would also contravene the intent of the General Assembly, as expressed in section 609 of the Act, which allows a custodial parent to remove a child from Illinois upon a proper showing that such removal is in the child's "best interests." 750 ILCS 5/609(a) (West 2000). We agree with those courts that have held that the interests of the custodial parent should not be automatically subordinated to those of the noncustodial parent in a removal action. See Shaddle, 317 Ill. App. 3d at 435; Ludwinski, 312 Ill. App. 3d at 503; Eaton, 269 Ill. App. 3d at 517; Marriage of Branham, 248 Ill. App. 3d 898, 905 (1993). Indeed, "our society is a mobile one" (Eckert, 119 Ill. 2d at 330) and "since a court has no power to require the noncustodial parent to remain in Illinois, or to require members of the extended family to remain in Illinois, some deference is due to the custodial parent who has already determined the best interests of her child and herself are served by remarriage and removal. The best interests of children cannot be fully understood without also considering the best interests of the custodial parent." (Emphasis in original.) Eaton, 269 Ill. App. 3d at 515-16.
Our decision today, however, should not be interpreted as standing for the proposition that any enhancement in the quality of life of the custodial parent automatically translates into an improvement in the quality of life for the child, or that such benefits will always be sufficient to warrant removal. However, we emphasize that because there is a nexus between the well-being of the custodial parent and the child who is in this parent's care, all benefits afforded to the child as a result of the move must be considered by the circuit court in making its best interests determination. We caution, however, that in making this determination, a circuit court should not limit its examination solely to enhanced economic opportunities for the custodial parent. A court must also consider other noneconomic factors resulting from the move which are likely to contribute to, or detract from, the well-being and happiness of the custodial parent and the child. We reiterate our holding in Eckert that a custodial parent's mere desire to move to another state, without more, is an insufficient basis for removal. Eckert, 119 Ill. 2d at 325. The burden of proof remains upon the custodial parent to establish that the move would be in the best interests of the child. Eckert, 119 Ill. 2d at 330; 750 ILCS 5/609(a) (West 2000).
The final paragraph is the one in which the Court tries to strike what it believes is the right balance. The burden of proof is always on the parent seeking to remove.
The opinion continued:
As stated, the circuit court determined that [the child] would experience substantial "indirect" benefits as a result of moving with his mother to Massachusetts, and concluded that the evidence presented on this specific factor favored the move. The court observed that as a result of the move, [the Mother] would be able to marry [the new husband] and live in his home in Sharon. The creation of a new family unit and the social environment of a traditional family setting may be considered an important benefit to a child. The circuit court also found that [the Mother] established that as a result of the move she has the opportunity to become an integral part of a family-owned business and substantially increase her income. An improvement in the financial situation of the custodial parent will generally benefit a child by enhancing the child's standard of living. In addition, the circuit court found that as a result of the move [the Mother] could schedule her work hours around [the child]'s school day, and be available to transport him to and from school and also extracurricular activities. This is in contrast to the situation in Illinois, where [the child] went from day care to school, and from school back to day care, offering him little family life until after 5 p.m. The flexibility of [the Mother]'s work schedule would benefit [the child] not only by allowing his mother to spend more time with him, but also by permitting his mother to withdraw him from a day care environment in which he was unhappy and providing her the opportunity to enroll [the child] in various activities that were unavailable to him as a result of her work schedule. [The Mother]'s new work arrangement would afford her the time, energy and means to be a part of [the child]'s life in ways that had not been possible in the past. In addition, the circuit court found that the move will allow [the child] to attend a school system that [the Mother] believes will offer [the child] academic opportunities superior to those available in Hampshire. Although the circuit court found that the evidence pertaining to the school systems in Sharon and Hampshire was "not conclusive," the court also found that the school system in Sharon "is at least comparable to that of Hampshire." In addition, the circuit court found that the educational and cultural amenities are plentiful in the area in which [the Mother] wishes to relocate. In assessing whether the move to Massachusetts would enhance the quality of [the child]'s life, the circuit court also observed that the existing joint custody arrangement "has already resulted in the separation of the siblings in this case." The court noted that the brothers already resided in separate households, attended separate schools, and that the five-year age difference between Geoffrey and [the child] underscored their different interests.
The step-parent aspect of the Collingbourne decision should be emphasized. That decision stated:
In the final analysis, we adhere to our statement in Eckert that a trial court's examination of a removal petition should be guided by the policies of the Act, one of which is to " 'secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children during and after the litigation.' " Eckert, 119 Ill. 2d at 328, quoting Ill. Rev. Stat. 1987, ch. 40, par. 102(7), now 750 ILCS 5/102(7) (West 2000). We agree that policy is "best served when, in addition to a favorable determination of all of the Eckert factors, the court considers the aspects of cooperation of both parents in achieving as reasonable an expectation of normalcy and family life for the child involved as can be achieved following a divorce, which includes adjustments to stepparents in the event of the remarriage of one or both parents." Marriage of Roppo, 225 Ill. App. 3d at 732.
As illustrated by the spreadsheet, prior to the Supreme Court's opinion in Collingbourne and Smith, the determination of whether a child could be removed from Illinois was dependent upon the appellate district in which the case was brought.
In the first, fourth and fifth appellate districts, economic necessity was a compelling reason for allowing a removal. Economic necessity was usually shown when the custodial parent was required to choose between keeping the child and a new spouse with a job in the distant state. It often included a long period of unemployment for the parent seeking removal. If the new spouse made insufficient attempts at finding employment in Illinois, then necessity had not been shown. If, however, the new spouse had made attempts and failed, or if moving to Illinois would be wholly impractical, then the removal was usually allowed. A showing of economic necessity was insufficient of itself, however; the fourth appellate district cases of Davis and Clark required a showing of benefits to the children from the move as well. Meanwhile, the second appellate district denied, and the third appellate district allowed removal, almost as a matter of course.
After the Supreme Court's Smith decision, which reversed an allowance of removal in the face of indirect benefits to the children, the various district courts (other than the Second district) seemed to be reversing their individual, unwritten bright line rules. The second district at first appeared to be headed in a direction of considering indirect benefits, contrary to its previous practice of routinely denying removal (#54) . Then, the second district reversed course and reiterated its stance in its previous line of cases in that the direct benefits for the children had to be proven in the second district. It was because of this division among the districts that the Supreme Court clearly felt compelled to rule in its Collingbourne decision.
The third district has reversed an allowance of removal in spite of a job offer and fiancee in the other state, which might have been considered an indirect benefit justifying removal had the case been decided before Smith (#55) . The fourth district has shifted from viewing indirect benefits as a determining factor to an optional consideration; in an initial custody determination that could not fit within the economic necessity framework, it assigned a great deal of weight to the stress of uprooting children from the place of their home and friends (#56) . The fifth district has shifted from paying close attention to whether the children’s quality of life will be enhanced by the move, to emphasizing the importance of all five Eckert factors (#57) . In fact, I had written that all the district courts had appeared to be responding to Smith by acknowledging the importance of all the Eckert factors in removal determinations, thereby beginning a new line of case law that is far more unified on the subject of removal, than any time in the recent past.
In the iteration of this article, I had stated:
It is anticipated that the Supreme Court in Collingbourne will determine that it is improper to require direct benefits to be proven to allow a removal but that even when proving indirect benefits, the burden of proof is always on the petitioner and the petitioner must demonstrate that based upon the totality of the evidence that the removal would benefit the children.
This is exactly the balance attempted to be struck by the Illinois Supreme Court. It is illustrated by the contrast between the Stahl and the Repond decisions this balance remains elusive.
* Carl W. Gilmore previously
worked with me at Gitlin & Gitlin. Carl is the publisher of Gilmore
on Parentage and now works in Woodstock at Woodstock Legal Consultants, Ltd.,
1143 N. Seminary Avenue.
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